Summary: The amendments to Rule 4 strike references to the “registration” requirements for private process servers; private process servers are governed by the existing ACJA § 7-204. Individuals who meet the criteria of ACJA § 7-204 are “certified” as private process servers under that code section. Rule 4 is also amended to strike references to the residency requirements; corresponding changes to ACJA § 7-204 also delete the requirement that an applicant be a “bona fide resident” of Arizona for at least one year preceding the application for certification as a private process server. ACJA § 7-204 specifies the application, examination, certification, renewal, complaint, and disciplinary process. Once certified, a private process server is issued an identification card by the Clerk of the Superior Court and is eligible to serve process statewide.

Summary: This rule change simplifies service on a governmental entity.

Impact: The rule consolidates three sections of former Rule 4.1 into a single section (h). Service on a governmental entity is now done by delivering the summons and pleading to the following individuals:

for service upon the State, the Attorney General

for service upon a county, the Clerk of the Board of Supervisors

for service upon a municipal corporation, its Clerk

for service upon any other governmental entity, the individual designated by the entity pursuant to statute to receive service, or if none, then the chief executive officer, or alternatively, the official secretary, clerk, or recording officer of the entity as established by law.

Summary: The change abrogates Rule 16(g)(2) and Rule 84, Form 3, and eliminates the need for parties to file an Alternative Dispute Resolution report with the court.

Impact: Former Rule 16(g)(2) required the parties to confer no later than 90 days after the first appearance of a defendant regarding ADR, and to use Form 3 to inform the court of the result of that conference. These requirements are eliminated effective January 1, 2013. Courts may therefore remove corresponding event codes.

Summary: Arizona has now adopted provisions of the Uniform Interstate Depositions and Discovery Act.

Rule 30(h) [“Depositions for foreign jurisdiction”] is deleted

Rule 45(b) concerning subpoenas is modified

Rule 45.1 is a new rule that adopts provisions based on the Uniform Act

Impact: Rule 45(b): The superior court of the county in which a hearing or trial will be held (or, for a deposition, the superior court of the county where the case is pending) will issue a subpoena, except as provided in new Rule 45.1 for subpoenas involving interstate discovery.

Rule 45.1: This new rule governs interstate discovery procedures.

The former procedure under Rule 30(h) is eliminated. That procedure required the party requesting a subpoena relating to a case that was pending in another state to file an application under oath as a civil action in Arizona.

To request issuance of a subpoena under new Rule 45.1, a party must present a foreign subpoena to a clerk in the Arizona county where discovery is sought. The foreign subpoena must include the following phrase below the case number: “For the issuance of an Arizona Subpoena Under Ariz. R. Civ. P. 45.1”

When a party presents a foreign subpoena to a clerk, the clerk must promptly issue a signed but otherwise blank subpoena to the party requesting it; and the party must complete the subpoena in the manner specified by the rule before serving it.

A party serves a subpoena issued under Rule 45.1 as provided in Rule 45(d).

A motion for a protective order, a motion to quash the subpoena, etc., must be filed as a separate civil action under Rule 45.1. The new action must bear the caption that appears on the subpoena. The following phrase must appear below the case number of the newly filed action: “Motion or Application Related to a Subpoena Issued Under Ariz. R. Civ. P. 45.1”

Any later motion or application relating to the same subpoena must be filed in the same action.

The clerk may need new event codes for issuance of a subpoena under new Rule 45.1, or for the filing of a civil action under the new rule. The clerk must assure that a request for a subpoena under this rule, or a separate civil action filed under this rule, contains the language required by this rule in the caption.

Summary: This amendment changes the requirement that a prospective master file a conflicts affidavit before appointment. It now requires instead that the prospective master file the affidavit after the court refers a matter to the master, but before the master accepts the appointment.

Impact: This change will allow a judge to follow the usual practice of referring a matter to a master prior to having a conflicts affidavit, in order to save time. The master must still file the affidavit before accepting the appointment.

Summary: This change clarifies that the entry of default occurs upon acceptance by the clerk of the filed application for entry of default.
Impact: This rule change intends to make clear that, beyond the acceptance of a filed application, the clerk is not required to perform any other ministerial act, such as signing or sealing a document, to enter default.

Impact: The “Comment to 2013 Amendments to Rule 56,” which appears after the full text of Rule 56(h), contains a summary of the changes to this revised rule.

Rule 56(a): The summary judgment standard is now in this section; it was previously in Rule 56(c).

Rule 56(b): This section sets the earliest that a motion can be filed: by a claimant, 20 days from service, but no sooner than the date that the answer is due, or after service of a 12(b)(6) or MSJ by the adverse party; and by any other party, at any time after the action is commenced.

This section also provides the latest day for filing: as set by the court or by local rule; or 90 days before the trial date (as in the previous rule.)

Rule 56(c): A party may request a hearing on a summary judgment motion, but the court need not set a hearing if the court determines that the motion should be denied, or if the motion is uncontested.

This section keeps the response/reply times of 30/15 days after service, respectively. It also allows the time to be shortened or extended by court order or by stipulation. However, court approval is required for a stipulated extension that would allow a party to file a response or reply less than five days before a hearing, or that would require postponement of a hearing or other scheduling modification.

The requirements for the content of a motion, or of an opposition to a motion, are consistent with what was in the previous version of Rule 56(c).

Rule 56(d): If the court grants a motion in part, it may enter an order stating any material fact, or an item of damages, that is not in dispute, and treat that fact or item as established.

Rule 56(e): This section concerning the form of affidavits is generally consistent with previous provisions, but the section has been restyled. The section retains the prior requirement, that a defending party may not rely on allegations or denials of its own pleading, but must by affidavits or otherwise set forth specific facts that show a genuine issue for trial.

Rule 56(f): This section, now entitled “when facts are unavailable to the non-movant; request for Rule 56(f) relief and expedited hearing,” adds several new elements.

Filing a Rule 56(f) request, by itself and without an order from the court, does not extend the date by which the opposing party must respond to the motion.

The court will not consider a Rule 56(f) request if it does not include a separate certification that the party has made a good-faith effort to resolve the matter after personally consulting with the opposing party.

A response to a Rule 56(f) request is not required, unless ordered by the court; but the party must file any response no later than two days before a Rule 56(f) hearing.

The court must hold an expedited hearing on the request, in person or via telephone, within 7 days after the request is filed, but the hearing may be set later if the court‟s calendar does not allow a hearing within this time.

Rule 56(g): The sanction provision of the old rule concerning affidavits filed in bad faith remains, but the section adds a requirement that the court must allow notice and a reasonable time to respond before imposing a sanction.

Rule 56(h): This brief but substantial new section allows the court, after giving notice and a reasonable time to respond, to (1) grant summary judgment for a non-movant; (2) grant the motion on a ground not raised by a party; or (3) consider summary judgment after identifying for the parties materials facts that are not genuinely in dispute.